Copyright and Fair Use

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A healthy copyright system must balance the need to provide strong economic incentives through exclusive rights with the need to protect important public interests like free speech and expression. Fair use is foundational to that balance. It's role is to prevent copyright from stifling the creativity it is supposed to foster, and from imposing other burdens that would inhibit rather than promote the creation and spread of knowledge and learning.

The Fair Use Project (FUP) was founded in 2006 to provide legal support to a range of projects designed to clarify, and extend, the boundaries of fair use in order to enhance creative freedom and protect important public rights. It is the only organization in the country dedicated specifically to providing free and comprehensive legal representation to authors, filmmakers, artists, musicians and other content creators who face unmerited copyright claims, or other improper restrictions on their expressive interests. The FUP has litigated important cases across the country, and in the Supreme Court of the United States, and worked with scores of filmmakers and other content creators to secure the unimpeded release of their work.

Julie is a Non-Residential fellow with Stanford CIS. She represents writers, filmmakers, musicians, and others who rely on fair use in creating their works. Julie has represented visual artist Shepard Fairey in copyright litigation against The Associated Press over Fairey’s “Obama Hope” posters, RDR Books in its copyright and Lanham Act dispute with J.K.

Tim is a Fellow at the Center for Internet & Society. He splits his time between representing authors, filmmakers, musicians, and others who rely on copyright fair use in creating their works, and pursuing a scholarly research agenda. Tim’s research interests include trademark theory, copyright and trademark fair use, and various doctrinal areas governed by the First Amendment, including commercial speech and campaign finance regulation.

Annemarie Bridy is a Professor of Law at the University of Idaho College of Law, where she teaches intellectual property and technology law. Her research focuses on the impact of disruptive technologies on legal frameworks for the protection of intellectual property and the enforcement of intellectual property rights. An active scholar, Professor Bridy has published numerous law review articles and book chapters, many of them on the evolving role of online intermediaries in digital anti-piracy and anti-counterfeiting operations.

Ben Depoorter is a Professor of Law and Roger Traynor Research Chair at the University of California, Hastings. He is a graduate of Yale Law School (L.L.M., J.S.D.) and also holds a J.D. (1999) and PhD (2003) from Ghent University and a Master's degree from the University of Hamburg (2001). He completed his studies at Yale Law School (2003) on a full scholarship from the Belgian American Educational Foundation (BAEF). As an Oscar Cox Fellow at Yale, Depoorter conducted research as a John M. Olin Fellow in Law, Economics, and Public Policy. He was a Santander Research Fellow at U.C.

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When FCC Chairman Ajit Pai announced last week that he would eliminate the "fair play" rules known as Net neutrality, he took a step that some economists and technologists worry will eventually lead to the monopolization of Internet services in America. What, if any, impact would the elimination of Net neutrality rules have on consumer privacy? The answer, in short, is that consumers would simply be forced to pay more for it.

Hollywood studios, led by Universal, have sued TickBox TV in federal district court in California, bringing their campaign against set-top box (STB) piracy stateside after a big win earlier this year in the EU. Last spring, the Dutch film and recording industry trade association BREIN prevailed in copyright litigation against the distributor of a STB called the Filmspeler. The CJEU held that the Filmspeler’s distributor, Wullems, directly infringed the plaintiffs’ copyrights—specifically, their right of communication to the public—by selling STBs loaded with software add-ons that provided easy access to infringing programming online. (I blogged about the Filmspeler case here.)

As you might have noticed, there is a lot of activism on the copyright/intermediary liability side in Europe at the moment. Hence, I'm here announcing another opinion that I have co-drafted with an amazing team of scholars, including Martin Senftleben (lead author), Christina Angelopoulos, Valentina Moscon, Miquel Peguera and Ole Rognstad, and has been endorsed by more than sixty other acadamics so far:

The Centre for International Intellectual Property Studies (CEIPI) has just published a position paper, which I have co-authored with Christophe Geiger and Oleksandr Bulayenko, on the proposed reform of copyright exceptions and limitations in the European Digital Single Market (DSM).

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In this work, I discuss the tension between gift and market economy throughout the history of creativity. For millennia, the production of creative artifacts has lain at the intersection between gift and market economy. From the time of Pindar and Simonides – and until the Romanticism will commence a process leading to the complete commodification of creative artifacts – market exchange models run parallel to gift exchange. From Roman amicitia to the medieval and Renaissance belief that “scientia donum dei est, unde vendi non potest,” creativity has been repeatedly construed as a gift.

Imagine if the inventor of the Segway claimed to own "any thing that moves in response to human commands." Or if the inventor of the telegraph applied for a patent covering any use of electric current for communication. Absurdly overbroad claims like these would not be allowed, right? Unfortunately, the Patent Office does not do a good job of policing overly broad claims. August's Stupid Patent of the Month, U.S. Patent No.

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Sarah Morris is a well-known multimedia artist and filmmaker. In 2007, she debuted her "Origami" series, 24 paintings in which she reworked, redesigned, and reshaped origami crease patterns on canvas. Several origami artists sued Morris for copyright infringement, arguing Morris had unduly appropriated their allegedly copyrightable origami crease patterns in developing the "Origami" series. The Fair Use Project teamed up with attorneys Bob Clarida and Donn Zaretsky to defend Morris. We briefed the fair use issues on summary judgment.

We filed an amicus brief in the Second Circuit on behalf of The Andy Warhol Foundation for the Visual Arts urging the appeals court to reverse a district court decision that ignored established fair use principles that many artists rely upon in creating their work.

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"“The VENUE Act would make it harder for companies to file a suit in districts that don’t have meaningful connection to the suit,” Daniel Nazer, staff attorney with the Electronic Frontier Foundation and Mark Cuban Chair to Eliminate Stupid Patents, told the Southeast Texas Record. “This bill is really about making sure disputes are filed somewhere that makes sense.”"

“It’s a targeted program that’s good for limiting the supply of patents to the very worst actors who use litigation to shake down people for settlements,” he said. “But it doesn’t stop problems with patent quality and with operating companies attacking each other.”

Thursday, April 16

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""Ideas, before you actually put them to work, are very vulnerable to stealing," said University of California, Hastings law professor Ben Depoorter. "We give protection to someone who can make good on that idea, and put it into a particular application, practice, expression, art form.

The song “Happy Birthday” has a long, litigious history dating back to the 1930s. Every year, people spent millions in royalties to use the song, until a class action lawsuit was brought challenging whether the owner, Warner/Chappell Music, actually owned the copyright it so aggressively enforced. Elizabeth Townsend-Gard, Tulane School of Law professor specializing in copyright law, discusses the case of “Happy Birthday.”